The parties to a tenancy governed by the West Bengal Premises Tenancy Act, 1956, cannot, by mutual agreement, adopt a mode of fixation of fair rent or increase of rent that is contrary to the provisions of the Act.

BHASKAR BHATTACHARYA, J.

( 1 ) THIS first appeal is at the instance of the defendant No. 1 in a suit for specific performance of contract and mandatory injunction and is directed against the preliminary decree dated 27th April, 2001 passed by the learned Civil Judge, Senior Division, 6th Court, Alipore, District-South 24-Parganas in Title Suit No. 85 of 1995 thereby granting a decree of specific performance of contract for appointment of Government valuer by both sides for fixation of rate of rent and payment of the same. The parties were directed to appoint a Government valuer each, within two months from that date and if any one of the parties failed or neglected to appoint such Government valuer, the report of the other side would be accepted by the Court by virtue of the said decree. The appellants were directed to deposit Rs. 6,000/- per month provisionally before the Court from May, 2001.

( 2 ) THERE is no dispute that the appellant was a tenant under the plaintiff in respect of a Godown, the tenancy being governed by the provisions contained in West Bengal Premises Tenancy Act, 1956. The plaintiff-landlord had filed this suit for specific performance of agreement between the parties being Ext.-1a, by which both the parties agreed that each of them would appoint a government valuer for assessing the valuation of the Godown and for fixation of rent as per Government Rules.

( 3 ) ACCORDING to the plaintiff, he had nominated a Government valuer but the defendant had not honoured that agreement, hence the suit.

( 4 ) THE aforesaid suit was contested by the present appellant by filing written statement thereby denying the allegations made in the plaint and the main question that came up for hearing before the learned Trial Judge was whether such type of agreement could be enforced by a Civil Court. In other words, the defence of the appellant was that in the matter of fixation of fair rent or increase of existing rent, the parties are required to approach the Rent Controller as provided in sections 8 to 12 of the West Bengal Premises Tenancy Act, 1956 and that the Civil Court has no jurisdiction to grant decree for specific performance of agreement of parties, if the same is inconsistent with those provisions.

( 5 ) BY the judgment and decree impugned herein, the learned Trial Judge has overruled such objection of the defendant and has passed a preliminary decree as indicated above.

( 6 ) BEING dissatisfied, the defendant/tenant has come up with the present appeal.

( 7 ) THERE is no dispute that during the pendency of this appeal, the tenant/ defendant has surrendered the tenancy in favour of the plaintiff and according to the plaintiff, even if the defendant has surrendered the tenancy, till the date of surrender, the rent should be calculated in accordance with the decisions of the valuer agreed to by parties and the tenant is liable to pay rent at that rate from the date of institution of the suit.

( 8 ) MR. Roy Chowdhury, the learned senior Counsel appearing on behalf of appellant has forcefully contended that the Court below erred in law in enforcing the agreement between the parties for fixation of fair rent by referring the matter to Government valuer for assessment of the rent on the basis of government Rules. Mr. Roy Chowdhury contends that undisputedly his client being a tenant governed by the provisions contained in the West Bengal Premises tenancy Act, if the landlord is not satisfied with the existing contractual rent and even if his client agreed to refer the dispute to the Government valuer for fixing the valuation of the property and for assessing the rent according to the government Rules, the same should not be given effect to as the same is hit by section 23 of the Contract Act being violative of the provisions of the West bengal Premises Tenancy Act, 1956. He, thus, prays for dismissal of the suit after setting aside the decree passed by the learned Trial Judge. In support of such contention Mr. Ro

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